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Privacy expectation unreasonable

What the court held

Case: State of Wisconsin v. David Allen Bruski, No. 2005AP1516-CR.

Issue: May an individual have a reasonable expectation of privacy in personal property inside a vehicle that he does not have a reasonable expectation of privacy in?

Holding: Yes. But totality of circumstances may render the expectation of privacy unreasonable.

Attorneys: For Appellant: Kleinmaier, Stephen W., Madison; Freimuth, James M., Madison; Blank, Daniel W., Superior; Thimm, Kelly J., Superior; For Respondent: Maroney, Margaret A., Madison.

A man passed out in somebody else’s car has no reasonable expectation of privacy in personal property he left in the car.

David Allen Bruski was found passed out in a car owned by Margaret Smith. He had a piece of a sandwich in his mouth, with the rest in his lap. The officers had to shake him physically to wake him up. He stated he had no idea how he had gotten to the location.

Smith was located, and escorted to the vehicle. Smith had allowed her daughter Jessica to use the car, but did not recognize Bruski.

She wanted to take possession of the car, but did not have the keys; neither did Bruski.

The police then searched the car for the keys. Not finding them anywhere, an officer then opened a travel case in plain view on the floor of the front passenger seat; neither Bruski nor Smith objected.

The officer did not find the car keys in the case, but did find marijuana and paraphernalia. Bruski was charged with its possession.

Burski moved to suppress the evidence found in the travel case, and the circuit court granted the motion. The court of appeals reversed in a published decision, and the Supreme Court affirmed the court of appeals.

In a Feb. 22 opinion by Justice Jon P. Wilcox, the court held that Bruski did not have a reasonable expectation of privacy in the travel case. Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissented.

The court first held that Bruski had no reasonable expectation of privacy in the vehicle itself, something the dissent did not take issue with. The search of the travel case was the only contested issue.

The court noted that other jurisdictions have divided on the issue: some hold there is no expectation; some reject a bright-line rule. The Supreme Court adopted the latter view, stating, “The Fourth Amendment does not lend itself to bright-line rules, and we will not adopt one in this case (cite omitted).”

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Case Analysis

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The court cited several factors in deciding that Bruski did not have an expectation of privacy: that the officers had already searched the rest of the car for the key, and the travel case was the next logica
l place to look; the case was not locked, and Bruski did not object when the officer opened it.

Accordingly, the court affirmed.

Justice Bradley wrote the dissent, objecting, “before you know it, the fabric of Fourth Amendment protection is frayed. We will then not just be talking about the constitutional rights of some drunk or drugged kid who woke in the morning to find his travel case searched. Rather, the majority opinion establishes the Fourth Amendment parameters for us all. What we are really talking about in this opinion is the diminution of constitutional protection afforded to all citizens, your rights and mine.”

The dissent objected to the factors employed by the majority in finding no expectation of privacy, stating, “Bruski’s reasonable expectation of privacy in his luggage does not diminish just because he was asleep in an automobile.”

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David Ziemer can be reached by email.

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